Opinion
C079581
09-18-2017
THE PEOPLE, Plaintiff and Respondent, v. PERCY LEVON BROWN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF124151A)
Defendant Percy Levon Brown was convicted by jury of second degree murder (Pen. Code, § 187), vehicular manslaughter with gross negligence (§ 192, subd. (c)(1)), and failure to stop at the scene of an accident resulting in death or serious injury (Veh. Code, § 20001, subd. (b)(2)). With respect to the manslaughter count, the jury also found defendant fled the scene of the crime (id., subd. (c)). After denying defendant's new trial motion, the trial court sentenced him to serve an aggregate state prison term of 16 years to life.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erroneously denied his new trial motion because the jury was inadvertently provided with inadmissible and prejudicial evidence during their deliberations. We disagree and affirm. While the jury was provided with a defense exhibit that was properly ruled inadmissible, the trial court did not abuse its discretion in concluding there was no reasonable probability of a more favorable outcome had that evidence not been received by the jury.
FACTS
As always, we recite the facts in the light most favorable to the judgment. (See People v. Johnson (1980) 26 Cal.3d 557, 578.) Before we do, we note defendant does not challenge the sufficiency of the evidence to support his convictions. However, because defendant's identity as the perpetrator was established entirely by circumstantial evidence, and because his sole contention on appeal requires us to determine whether he was prejudiced by the jury's receipt of inadmissible prior bad act evidence he claims allowed the jury to improperly infer he was the perpetrator in this case, we set forth the circumstantial identity evidence in some detail.
The victim was a truck driver. He lived in Stockton with his wife and two children and routinely parked his company semi-trailer truck in the parking lot of a department store near the Stockton Auto Mall, about one mile from where he lived. On May 4, 2012, at about 5:15 a.m., the victim's wife gave him a ride to his semi in their pickup truck. Their children came along to see their father off for the day and were sleeping in the back seat during the short drive. When they arrived, another semi was parked beside the victim's truck and a man was using a hydraulic hose to siphon gas from the victim's truck. This man quickly pulled the hose out of the gas tank, threw it in the back of the other truck, and retreated toward that truck's passenger door. Meanwhile, the victim jumped out of the pickup and caught the man who was doing the siphoning before he could get into the other truck. As the men began to fight, the victim's wife screamed and yelled for her oldest son to climb into the front seat to close the door the victim left open when he jumped out of the pickup. The boy complied.
As the victim's wife called 911 to report what was happening, the man with whom the victim was fighting managed to get into the passenger seat of the other vehicle. The victim climbed onto the side of that semi and prevented him from shutting the door. The driver of this semi started it up and began to drive through the parking lot while the victim and the passenger continued to fight through the partially open door. As the victim's son described, "my dad was trying to get the guy out [of] the truck" and, "he was banging on the window, trying to get the guy out." The victim's wife followed in the pickup as the semi sped up through the parking lot while "swerving," indicating to the victim's son that the driver was "trying to swing him off." When the semi reached the back of the parking lot, it made a sharp right turn onto Sampson Road, throwing the victim onto the pavement and running him over in the process. The victim's wife briefly lost sight of the semi during the turn and did not see her husband being run over. Seeing the victim lying face down on the ground, she stopped the pickup and their son jumped out to check on his father. The victim was unable to speak and his breathing was labored.
Police and emergency medical personnel arrived within minutes. The victim was transported to St. Joseph's Medical Center, where he died from his injuries.
Defendant does not dispute the driver of the semi who engaged in such conduct is guilty of second degree murder, vehicular manslaughter with gross negligence, and hit and run resulting in death. Nor does he dispute the evidence was sufficient to establish beyond a reasonable doubt that he was the driver. Strong circumstantial evidence supported such a conclusion. Defendant admitted during his testimony that he owned the truck in question. The victim's wife also positively identified defendant's semi as the vehicle that drove at a high rate of speed through the parking lot with the victim holding onto the passenger side of the vehicle. She further testified that as the passenger of the semi was trying to close the door, the victim appeared to be trying to keep the door open, and his left hand was near the door's handle. This handle came off of the semi and was found on East Telstar Place, a road Sampson turns into a short distance from where the victim was thrown from the truck. Within minutes of the incident, an image of the same semi was captured traveling through the intersection of Holman Road and March Lane, about one mile south of where it lost its door handle.
Ten days after the murder, the Stockton Police Department held a press conference to ask for the public's assistance in locating the semi whose image was captured on the traffic camera. Various tips were received in the days following the press conference, certain of which led Detective Mark Thrush to a house on Porterfield Court where defendant routinely stayed with his girlfriend, Tanisha Hopkins. Defendant parked the semi there when he stayed overnight. However, when Detective Thrush went to the house, the semi was not there. At some point, defendant moved the truck several miles south and parked it in the parking lot of the Little Flock Missionary Baptist Church. Hopkins's grandfather owned property adjacent to the church and donated the land the church used as its parking lot. Sometime thereafter, the church's minister spoke with defendant on the phone and informed him the truck would be towed if it was not removed from the parking lot. The truck was moved back to Hopkins's house at the end of June 2012. Two days later, another tip caused Detective Thrush to return to the house. This time, the truck was there. That evening, a number of detectives and other law enforcement personnel returned to execute a search warrant on the truck and the house. Defendant, who was standing in front of the house when they arrived, "bolted" into the house, ran out a rear sliding glass door, and jumped over a fence in the backyard. He was apprehended by an officer who was stationed one street behind the house, in case anyone fled out of the back.
Defendant testified he ran from police because he was not supposed to be at Hopkins's house because of a restraining order she had taken out against him following an incident of domestic violence. However, when he was interviewed by detectives following his arrest in this case, he denied running from officers, claiming he was in the backyard when police arrived and he jumped the fence simply because he "heard a whole bunch of commotion" coming from the front of the house.
The subsequent investigation uncovered little in the way of forensic evidence from the semi. Defendant's fingerprints were found on the hood and front fender, but he did not dispute the truck was his. Instead, he disputed driving the semi the morning it was used to kill the victim. According to defendant's testimony, he was in Fresno at the time, having arrived the night before to attend a motorcycle event. An analysis of certain cell phone records, however, cast doubt on this alibi. Hopkins's cell phone was used to make a number of calls between 5:54 a.m. and 6:04 a.m. the morning the victim was murdered. These calls connected to four different cell phone signal towers, each in the same neighborhood as the department store where the victim usually parked his semi. Over a dozen calls made between 6:20 a.m. and 8:00 a.m. also connected to cell towers in Stockton. During this time period, the phone transmissions moved south and connected to a cell tower near the Little Flock church and Hopkins's grandfather's house. Between 8:00 a.m. and 8:17 a.m., the phone's transmissions again moved north and connected to a cell tower in the same neighborhood as Hopkins's house. Between 8:37 a.m. and 8:58 a.m., the phone was again connecting to cell towers near the church. Between 9:00 a.m. and 4:22 p.m., over 50 calls were made, each of which connected to the same cell tower near Hopkins's house. This phone did not connect to cell towers south of Stockton until after 5:00 p.m.
While Hopkins testified defendant did not use her cell phone the day of the murder, she previously told detectives she did not wake up until 9:00 a.m. that day. She also testified she allowed defendant to use her cell phone when he was staying at her house. From this, and the fact it was defendant's semi truck that ran the victim over, the jury could have reasonably inferred defendant was using her cell phone to make the calls between 5:54 a.m. and 9:00 a.m., connecting to cell towers near the crime scene immediately following the murder, then moving south to the area near the Little Flock church for over an hour, and ultimately returning to the area near Hopkins's house by 9:00 a.m., at which point he returned her phone. Hopkins also told detectives that when she got up that day, she began getting ready for the same motorcycle event in Fresno that defendant was attending, using her cell phone to make a number of phone calls to other attendees to coordinate plans. This would correspond with over 50 phone calls that connected to the same cell tower near her house between 9:00 a.m. and 4:22 p.m.
Hopkins also told detectives she left for the Fresno motorcycle event at 9:00 a.m., but testified she "just gave them a time" because she did not actually know what time she left. However, if she was the one using her cell phone that day, as she claimed, the records establish she did not leave the Stockton area until after 5:00 p.m. In any event, given the various inconsistencies between Hopkins's testimony and her prior statements to detectives, and between these prior statements themselves, the jury would have been justified in disbelieving her testimony defendant was not using her cell phone during the early morning hours on the day the victim was murdered. --------
Finally, we note defendant testified that only he drove his semi. And aside from claiming to be in Fresno at the time the victim was murdered, defendant had no theory as to who could have taken his truck that morning, or why that person returned it afterwards. Nor did defendant provide this alibi to the detectives who interviewed him following his arrest.
DISCUSSION
Defendant claims the trial court erroneously denied his new trial motion because the jury was inadvertently provided with inadmissible and prejudicial evidence during their deliberations. Specifically, he complains the jury received Defense Exhibit L, an affidavit for a search warrant containing a hearsay statement that defendant was a suspect in a diesel fuel theft that occurred in 2010 that was ruled inadmissible by the trial court. We reject the claim.
The right to move for a new trial in a criminal case is a statutory right. As such, a new trial motion "may be made only on the grounds enumerated in section 1181." (People v. Sainz (1967) 253 Cal.App.2d 496, 500.) As relevant here, a new trial motion may be granted "[w]hen the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property." (§ 1181, subd. (2).) Ordinarily, receiving evidence out of court is misconduct and "prejudice is presumed and reversal is required unless there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment." (People v. Clair (1992) 2 Cal.4th 629, 668 (Clair).) But when, as here, "a jury innocently considers evidence it was inadvertently given, there is no misconduct. The situation is the same as any in which the court erroneously admits evidence. . . . Such error is reversible only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error." (People v. Cooper (1991) 53 Cal.3d 771, 836.)
As a preliminary matter, the Attorney General argues there were no grounds for a new trial motion because a jury that innocently considers evidence it was inadvertently given has not "received any evidence out of court" within the meaning of section 1181. However, in Clair, supra, 2 Cal.4th 629, in which the defendant also moved for a new trial based on the jury's inadvertent receipt of excluded evidence, our Supreme Court did not hold the defendant had no grounds upon which to move for a new trial, but instead addressed whether or not the trial court abused its discretion in concluding the jury's receipt of such evidence was harmless. (Id. at p. 668.) We do the same. The Attorney General also argues defendant should be judicially estopped to assert the new trial motion was improperly denied because the exhibit that was inadvertently given to the jury was a defense exhibit he previously argued should be admitted into evidence. We need not decide the matter because, as we explain immediately below, we conclude there is no reasonable likelihood defendant would have received a more favorable outcome had the exhibit not been given to the jury.
The evidence against defendant was quite strong. Undisputed direct evidence established defendant's semi was parked next to the victim's semi the morning of the murder. The victim fought with a man who was siphoning gas from the latter truck to the former, causing that man to retreat to the passenger side of defendant's truck. As the victim climbed onto the truck and attempted to pull the man out, the driver of defendant's truck started it up and drove at a high rate of speed, swerving repeatedly, ultimately throwing the victim from the truck and running him over. Without recapitulating each item of circumstantial evidence establishing defendant was indeed the driver of his own truck that morning, we note the following is more than sufficient to render harmless the jury's receipt of the search warrant application. Defendant himself testified only he drove his truck. While the record is unclear as to whether the truck was parked at the Little Flock church within hours of the murder, or moved there from Hopkins's house after the press conference notified the community the police were looking for it, either way, parking the truck at this location is consistent with trying to keep it out of law enforcement authorities' sight. Defendant also knew the parking lot had previously belonged to Hopkins's grandfather, so it would have been reasonable for him to assume the truck could stay there for an extended period of time without drawing much attention. When he was notified, about a month later, the truck had to be moved, he returned it to Hopkins's house, where it was promptly reported to law enforcement authorities. Defendant also fled from police when they arrived to execute a search warrant of Hopkins's house and the semi. While he claimed he did so because he was in violation of a restraining order, he previously told detectives he did not run from them at all. Both parking the truck at the church and his flight from police the day he was apprehended evidenced a consciousness of guilt.
In addition to this evidence, the transmission records pertaining to Hopkins's phone revealed that phone was near the crime scene shortly after the murder, traveled south to the vicinity of the Little Flock church, and then back north to the vicinity of Hopkins's house by 9:00 a.m., the time Hopkins told detectives she woke up that morning. Viewed together, all of the evidence supports a reasonable inference defendant was using Hopkins's cell phone during this time period. Additionally, as previously noted, aside from claiming to be in Fresno, defendant had no theory as to who could have taken his truck that morning, or why that person returned it afterwards. Nor did defendant provide this alibi to the detectives who interviewed him following his arrest.
In light of the strong evidence of guilt, we conclude there is no reasonable probability of a result more favorable to defendant had the jury not received the search warrant application.
Nevertheless, defendant argues the error was not harmless because it took "a total deliberation time of about 13 hours" for the jury to render their verdict. But even assuming defendant's calculation of deliberation time is correct, this is not necessarily a lengthy period of time after nine days of receiving evidence. In any event, we do not assume lengthy deliberations indicate the jury had difficulty reaching a verdict rather than "simply hav[ing] sifted the evidence with special care." (People v. Brown (1985) 40 Cal.3d 512, 535, reversed on unrelated grounds in California v. Brown (1987) 479 U.S. 538 ; see also People v. Avena (1996) 13 Cal.4th 394, 435-436 [rejecting assumption lengthy penalty deliberations indicated jury had difficulty reaching decision].) Nor are we persuaded by defendant's observation the jury "requested read backs of testimony provided by [the victim's wife and son] as well as that provided by Roshaun Campbell," a defense witness who corroborated defendant's alibi. Again, this merely demonstrates the care with which the jury weighed the evidence. It does not establish a reasonable probability the jury would have weighed that evidence differently had the search warrant application not been inadvertently received. Indeed, given that Campbell was a friend of defendant, she had a motive to lie about seeing him in Fresno the night before the victim was murdered.
Finally, relying on People v. Cardenas (1982) 31 Cal.3d 897 (Cardenas) and People v. Ozuna (1963) 213 Cal.App.2d 338 (Ozuna), defendant argues, "where a case centers on the identity of the perpetrator, the erroneous admission of character evidence suggesting that the defendant is predisposed to commit the conduct in question ensures an unfair trial." Such reliance is misplaced. In Cardenas, our Supreme Court concluded, "serious evidentiary errors," i.e., "allowing the prosecutor to introduce evidence portraying [the defendant] as a Chicano gang member predisposed to commit violent crimes and as a heroin addict desperate to obtain money to support his habit," required reversal where "[t]he jury was confronted with an extremely close question as to whether [the defendant] was the man responsible for the crimes charged" and "[t]he evidence raised strong doubts as to the reliability of the eyewitness identifications." (Cardenas, supra, 31 Cal.3d at p. 914.) Unlike Cardenas, we do not consider the question of identity in this case to be extremely close. Nor was the search warrant application inadvertently received by the jury in this case nearly as prejudicial as the character evidence admitted in that case.
In Ozuna, supra, 213 Cal.App.2d 338, the Court of Appeal held the trial court prejudicially erred in allowing the prosecutor to intentionally elicit evidence of the defendant's out-of-court statement he was an "ex-convict," explaining the trial court's admonition to the jury to disregard the evidence did not cure the harm, and noting the defendant was convicted upon retrial after the jury in the first trial failed to reach a verdict, that jury having not been informed of the defendant's status as an ex-convict. (Id. at p. 342.) Unlike Ozuna, the search warrant application did not reveal defendant was convicted of any crime. Instead, it stated he was a suspect in a 2010 diesel fuel theft. Nor was defendant convicted upon retrial under circumstances suggesting the erroneous admission of character evidence in the second trial, but not the first, made the difference.
In short, neither Cardenas, supra, 31 Cal.3d 897 nor Ozuna, supra, 213 Cal.App.2d 338 stands for the sweeping proposition that the erroneous admission of character evidence "ensures an unfair trial." Instead, the question is whether there is a reasonable probability a result more favorable to defendant would have been reached had the jury not received such evidence. (People v. Cooper, supra, 53 Cal.3d at p. 836.) For reasons already expressed, we conclude there is no such probability in this case.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
ROBIE, Acting P. J. /s/_________
DUARTE, J.